1
EXHIBIT 15
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(this "Agreement") is made and entered into as of October 2, 2000, by and among
INFOGRAMES, INC. (formerly GT Interactive Software Corp.), a Delaware
corporation (the "Company"), and CALIFORNIA U.S. HOLDINGS, INC., a Delaware
corporation (the "Securityholder").
WHEREAS, pursuant to the terms and conditions of a Securities
Purchase Agreement, dated as of November 15, 1999 (the "Company Purchase
Agreement"), by and among the Company, Infogrames Entertainment SA., a French
societe anonyme ("Parent") and the Securityholder, the Company, among other
things, issued to the Securityholder an aggregate of 5,714,286 shares of common
stock of the Company, par value $0.01 per share ("Common Stock"), and a 5%
Subordinated Convertible Note in the aggregate principal amount of
approximately $60,600,000 (the "Note"), with a conversion price of $9.25 per
share;
WHEREAS, concurrent with the execution and delivery of the
Company Purchase Agreement, the Company issued to the Securityholder warrants
to purchase 10,000 shares of Common Stock, having an exercise price of $0.05
per share (the "Short-Term Note Warrants");
WHEREAS, concurrently therewith, the Securityholder acquired
from certain principal stockholders of the Company an aggregate of 6,711,701
shares of Common Stock (the "Cayre Shares") and warrants to acquire an
aggregate of 900,000 shares of Common Stock at an exercise price of $0.05 per
share (the "GAP Warrants");
WHEREAS, concurrently therewith, the Company and the
Securityholder entered into a Registration Right Agreement dated as of November
15, 1999 (the "Registration Right Agreement"), pursuant to which the
Securityholder received certain registration rights in respect of the shares of
Common Stock acquired by the Securityholder pursuant to the Company Purchase
Agreement, the Cayre Shares, and any shares of Common Stock issuable upon
conversion of the Original Note or upon exercise of the Short-Term Note
Warrants and the GAP Warrants.
WHEREAS, pursuant to the terms of the Master Assignment and
Acceptance dated as of February 15, 2000 (the "Assignment and Acceptance"), by
and among (i) the Company, as borrower, (ii) First Union National Bank, Bank of
America, N.A., European American Bank, Fleet Bank, N.A., National Bank of
Canada, The Bank of Nova Scotia (collectively the "Previous Lenders"), and
(iii) Parent, as assignee, the Previous Lenders assigned to Parent all the
rights and obligations of the Previous Lenders under the Credit Agreement dated
as of September 11, 1998 (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), by and among the Company and the Previous
Lenders;
2
WHEREAS, in connection with the Assignment and Acceptance, the
Company entered into a warrant agreement dated as of February 15, 2000 with
Parent and the Securityholder and issued to the Securityholder warrants to
purchase 45,000 shares of Common Stock (the "Credit Warrants");
WHEREAS, in connection with the issuance of the Credit
Warrants to the Securityholder, the Company and the Securityholder amended the
Registration Right Agreement, as of Febuary 15, 2000 (the "Amended and Restated
Registration Rights Agreement") to include the shares of Common Stock issuable
upon exercise of the Credit Warrants;
WHEREAS, in connection with the issuance of shares of Common
Stock to the Securityholder pursuant to the Agreement and Plan of Merger, dated
as of September 6, 2000, by and among the Company, INA Merger Sub, Inc.,
Parent, the Securityholder and Infogrames North America, Inc. (the "Merger
Agreement"), the Company has agreed to further amend the Amended and Restated
Registration Rights Agreement to include the shares of Common Stock issuable
pursuant to the Merger Agreement and the transactions contemplated thereby;
WHEREAS, the Company and the Securityholder deem it to be in
their respective best interests to amend and restate in its entirety the
Amended and Restated Registration Rights Agreement to set forth the rights of
the Securityholder in connection with public offerings and sales of the
Registrable Securities (as defined below).
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, and for other good and
valuable consideration, the sufficiency and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree to amend and restate in its entirety the Amended and Restated
Registration Rights Agreement as set forth herein and to agree as follows:
SECTION 1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" shall mean any Monday, Tuesday, Wednesday,
Thursday or Friday that is not a day on which banking institutions in New York
City are authorized by law, regulation or executive order to close.
"Common Stock" shall mean the common stock, par value $0.01
per share, of the Company.
"Delay Notice" shall have the meaning set forth in Section
6(b) hereof.
"Demand Participation Notice" shall have the meaning set forth
in Section 3(a) hereof.
"Demand Registration" shall have the meaning set forth in
Section 3(a) hereof.
3
"Demand Registration Notice" shall have the meaning set forth
in Section 3(a) hereof.
"Holder" shall mean the Securityholder and any of its
transferees that owns Registrable Securities. For purposes of this Agreement,
the Company may deem the registered holder of a Registrable Security as the
Holder thereof.
"Material Development Condition" shall have the meaning set
forth in Section 6(b) hereof.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
materials incorporated by reference in such prospectus.
"Registrable Securities" shall mean (i) the shares of Common
Stock acquired by the Securityholder pursuant to the Company Purchase Agreement
and the Cayre Shares, (ii) any shares of Common Stock issuable upon conversion
of the Note, (iii) any shares of Common Stock issuable upon exercise of the
Short-Term Note Warrants and the GAP Warrants, (iv) any shares of Common Stock
issuable upon exercise of the Credit Warrants, (v) any shares of Common Stock
issuable pursuant to the Merger Agreement, including the 20,089,224 shares of
Common Stock issued in connection with the conversion of the then outstanding
debt under the Credit Agreement and certain intercompany payables, and (vi) any
other securities issued or issuable as a result of or in connection with any
stock dividend, stock split or reverse stock split, combination,
recapitalization, reclassification, merger or consolidation, exchange or
distribution in respect of such Common Stock.
"Registration Expenses" shall have the definition set forth in
Section 7 hereof.
"Registration Period" shall have the definition set forth in
Section 3(b) hereof.
"Registration Statement" shall mean any registration statement
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus included therein, all amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such
registration statement.
"Requesting Securityholder" shall have the meaning set forth
in Section 4 hereof.
"Restricted Securities" shall have the meaning set forth in
Section 2 hereof.
4
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"Rule 903" shall mean Rule 903 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"Rule 904" shall mean Rule 904 promulgated under the
Securities Act, as amended from time to time, or any similar successor rule
thereto that may be promulgated by the SEC.
"SEC" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended (or any similar successor federal statute), and the rules and
regulations thereunder, as the same are in effect from time to time.
"Underwritten Offering" shall mean a registered offering in
which securities of the Company are sold to an underwriter for reoffering to
the public.
(b) All references to the number of shares of Common
Stock shall reflect the one-for-five reverse stock split of the issued and
outstanding shares of Common Stock, effected by the Company as of the close of
business on June 26, 2000.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.
The securities entitled to the benefits of this Agreement are
the Registrable Securities but, with respect to any particular Registrable
Security, only so long as such security continues to be a Restricted Security.
A Registrable Security that has ceased to be a Registrable Security cannot
thereafter become a Registrable Security. As used herein, a "Restricted
Security" is a Registrable Security which has not been effectively registered
under the Securities Act and distributed in accordance with an effective
Registration Statement and which has not been sold by a Holder pursuant to Rule
144 (except pursuant to a transfer to any affiliate of such Holder), Rule 903
or Rule 904, unless, in the case of a Registrable Security distributed pursuant
to Rule 903 or 904, any applicable restricted period has not expired or the SEC
or its staff has taken the position in a published release, ruling or no-action
letter that securities distributed under Rule 903 or 904 are ineligible for
resale in the United States under Section 4(1) of the Securities Act
notwithstanding expiration of the applicable restricted period.
5
SECTION 3. DEMAND REGISTRATION.
(a) Demand. At any time during the term of this Agreement, a
Holder or Holders may request the Company, in writing (a "Demand Registration
Notice"), to effect the registration of all or such portion of the Registrable
Securities as such Holder or Holders shall specify; provided, that only one
demand may be made pursuant to this Section 3(a) during any six month period;
provided, further, that an aggregate of only three demands may be made pursuant
to this Section 3(a), unless the Company is eligible to use Form S-3 (or any
successor form) in which case the foregoing limitation shall not apply. Upon
receipt of any such Demand Registration Notice, the Company shall promptly give
written notice of such proposed registration to all other Holders. Such
Holders shall have the right, by giving written notice (the "Demand
Participation Notice") to the Company within fifteen (15) days after the
Company provides its notice, to elect to have included in such registration
such number of their Registrable Securities as such Holders may request in such
Demand Participation Notice. A Holder or Holders may, at any time up to five
(5) Business Days before the filing date of the applicable Registration
Statement relating to the Demand Registration, request that his or its
Registrable Securities not be included therein by providing a written notice to
that effect to the Company.
Upon receipt of a Demand Registration Notice, the Company
shall use its commercially reasonable efforts to file, as expeditiously as
possible, but in any event no later than forty-five (45) days after such Demand
Registration Notice, a Registration Statement on Form S-3 (or any successor
form), or any other form available to the Company under the Securities Act,
covering all Registrable Securities which the Company has been so requested to
register (the "Demand Registration").
(b) Effectiveness of Registration Statement. Subject to the
provisions of Sections 6(b) and (c) hereof, the Company agrees to use its
commercially reasonable efforts to (i) cause the Registration Statement(s)
relating to the Demand Registration described in Section 3(a) to become
effective as promptly as practicable (such date of effectiveness, the
"Effective Time"), and (ii) thereafter keep each such Registration Statement
effective continuously for the period (the "Registration Period") ending,
subject to the second sentence of Section 5(b) hereof and clause (3) of the
last sentence of Section 6(b) hereof, on the earlier of (A) one year following
the Effective Time, and (B) the date on which all Registrable Securities
covered by each such Registration Statement have been sold and the distribution
contemplated thereby has been completed.
(c) Inclusion of Other Securities. Any other holder of the
Company's securities who has registration rights may include its securities in
the Demand Registration effected pursuant to this Section 3.
SECTION 4. PIGGYBACK REGISTRATION.
If, during the term of this Agreement, the Company at any time
proposes to file a registration statement with respect to any class of equity
securities, whether (i) for its own account (other than in connection with the
Registration Statement contemplated by Section 3 or a registration statement on
Form S-4 or S-8 (or any successor or substantially similar form), and other
than in connection with (A) an employee stock option, stock purchase or
compensation
6
plan or of securities issued or issuable pursuant to any such plan, or (B) a
dividend reinvestment plan) or (ii) for the account of a holder of securities
of the Company pursuant to demand registration rights granted by the Company (a
"Requesting Securityholder"), then the Company shall in each case give written
notice of such proposed filing to all Holders of Registrable Securities at
least fifteen (15) days before the anticipated filing date of any such
registration statement by the Company, and such notice shall offer to all
Holders the opportunity to have any or all of the Registrable Securities held
by such Holders included in such registration statement. Each Holder of
Registrable Securities desiring to have its Registrable Securities registered
under this Section 4 shall so advise the Company in writing within ten (10)
days after the date of receipt of such notice (which request shall set forth
the amount of Registrable Securities for which registration is requested), and
the Company shall use its commercially reasonable efforts to include in such
registration statement all such Registrable Securities so requested to be
included therein. Notwithstanding the foregoing, if the managing underwriter
or underwriters of any such proposed public offering advises the Company that
the total amount of securities which the Holders of Registrable Securities, the
Company and any other Persons intended to be included in such proposed public
offering is sufficiently large to adversely affect the success of such proposed
public offering, then the amount of securities to be offered for the accounts
of Holders of Registrable Securities shall be reduced pro rata, based upon the
aggregate number of securities to be offered for the accounts of all of the
Holders of Registrable Securities and all other holders (except the Company and
the Requesting Securityholder) of securities intended to be included in such
offering and the number of securities to be offered for the account of each
such Holder, to the extent necessary to reduce the total amount of securities
to be included in such proposed public offering to the amount recommended by
such managing underwriter or underwriters before the securities offered by the
Company or any Requesting Securityholder are so reduced. Anything to the
contrary in this Agreement notwithstanding, the Company may withdraw or
postpone a registration statement referred to in this Section 4 at any time
before it becomes effective or withdraw, postpone or terminate the offering
after it becomes effective without obligation to the Holder or Holders of the
Registrable Securities; provided that the Company's obligations pursuant to
Section 5(a)(ii), 7 and 8 shall remain effective.
SECTION 5. REGISTRATION PROCEDURES.
(a) General. In connection with the Company's registration
obligations pursuant to Section 3 and, to the extent applicable, Section 4
hereof, the Company will:
(i) prepare and file with the SEC a new Registration
Statement or such amendments and post-effective amendments to an
existing Registration Statement as may be necessary to keep such
Registration Statement effective for the time periods set forth in
Section 3(b), provided that no Registration Statement shall be
required to remain in effect after all Registrable Securities covered
by such Registration Statement have been sold and distributed as
contemplated by such Registration Statement, and, provided, further,
that as soon as practicable, but in no event later than five (5)
Business Days before filing such Registration Statement, any related
Prospectus or any amendment or supplement thereto, other than any
amendment or supplement made solely as a result of incorporation by
reference of documents filed with the SEC subsequent to the filing of
such Registration Statement, the Company shall furnish to the Holders
of the Registrable Securities covered by such Registration Statement
and the underwriters, if any, copies of
7
all such documents proposed to be filed, which documents shall be
subject to the review of such Holders and underwriters;
(ii) notify the selling Holders of Registrable Securities and
the managing underwriters, if any, promptly (1) when a new
Registration Statement, Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any new
Registration Statement or post-effective amendment, when it has
become effective, (2) of any request by the SEC for amendments or
supplements to any Registration Statement or Prospectus or for
additional information, (3) of the issuance by the SEC of any comments
with respect to any filing, (4) of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose, (5) of any suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose and (6) if there is a misstatement or omission of a
material fact in any Registration Statement, Prospectus or any
document incorporated therein by reference or if any event occurs
which requires the making of any changes in any Registration
Statement, Prospectus or any document incorporated therein by
reference in order to make the statements therein (in the case of any
Prospectus, in the light of the circumstances under which they were
made) not misleading;
(iii) if reasonably requested by the managing underwriter or
underwriters or a Holder of Registrable Securities being sold in
connection with an Underwritten Offering, promptly incorporate in a
Prospectus supplement or post-effective amendment such information as
the managing underwriters and the Holders of a majority of the
Registrable Securities being sold in such Underwritten Offering agree
should be included therein relating to the sale of the Registrable
Securities, including, without limitation, information with respect to
the aggregate number of shares of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the Underwritten
Offering of the Registrable Securities to be sold in such offering;
and promptly make all required filings of such Prospectus supplement
or post-effective amendment;
(iv) furnish to each selling Holder of Registrable Securities
and each managing underwriter, if any, without charge, as many
conformed copies as may reasonably be requested of the then effective
Registration Statement and any post-effective amendments thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(v) deliver to each selling Holder of Registrable Securities
and the underwriters, if any, without charge, as many copies of the
then effective Prospectus (including each prospectus subject to
completion) and any amendments or supplements thereto as such Persons
may reasonably request;
(vi) use commercially reasonable efforts to register or
qualify or cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or "blue sky" laws
of such jurisdictions as any
8
selling Holder of Registrable Securities or underwriter reasonably
requests in writing; provided, however, that the Company will not be
required to (1) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify, but for this paragraph
(vi), (2) subject itself to general taxation in any such jurisdiction
or (3) file a general consent to service of process in any such
jurisdiction;
(vii) cooperate with the selling Holders of Registrable
Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two (2) Business Days prior to any
sale of Registrable Securities to the underwriters;
(viii) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange (or
quotation system operated by a national securities association) on
which identical securities issued by the Company are then listed if
requested by the Holders of a majority of the Registrable Securities
covered by such Registration Statement or the managing underwriters,
if any, and enter into customary agreements including, if necessary, a
listing application and indemnification agreement in customary form,
and provide a transfer agent for such Registrable Securities no later
than the effective date of such Registration Statement;
(ix) otherwise use its commercially reasonable efforts to
comply in all material respects with all applicable rules and
regulations of the SEC relating to such registration and the
distribution of the securities being offered and make generally
available to its securities holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act;
(x) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.; and
(xi) subject to the proviso in paragraph (vi) above, cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities (other than as may be required by the
governmental agencies or authorities of any foreign jurisdiction and
other than as may be required by a law applicable to a selling Holder
by reason of its own activities or business other than the sale of
Registrable Securities).
As a condition precedent to the participation in any
registration hereunder, the Company may require each seller of Registrable
Securities as to which any such registration is being effected to furnish to
the Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request to comply
with the applicable provisions of the Securities Act.
9
(b) Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
5(a)(ii)(4), (5) or (6) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the then current Prospectus
until (1) such Holder is advised in writing by the Company that a new
Registration Statement covering the offer of Registrable Securities has become
effective under the Securities Act or (2) such Holder receives copies of any
required supplemented or amended Prospectus, or until such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed. If the
Company shall have given any such notice during a period when a Demand
Registration is in effect, the Company shall extend the period during which
such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during which any such disposition of
Registrable Securities is discontinued pursuant to this Section 5(b). If so
directed by the Company, on the happening of such event, the Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
SECTION 6. HOLDBACK AGREEMENTS.
(a) Hold-Back Election. In the case of the registration of
any underwritten primary offering initiated by the Company (other than any
registration by the Company on Form S-4 or Form S-8 (or any successor or
substantially similar form), and other than in connection with (A) an employee
stock option, stock purchase or compensation plan or of securities issued or
issuable pursuant to any such plan, or (B) a dividend reinvestment plan) or any
underwritten secondary offering initiated at the request of a holder of
securities of the Company pursuant to registration rights granted by the
Company, each Holder agrees that if he or it is (x) then a 5% or greater
stockholder, a director or an officer of the Company and (y) reasonably
requested to do so by the managing underwriter or the underwriters, then such
Holder shall not effect any public sale or distribution of securities of the
Company, except as part of such underwritten registration, during the period
beginning twenty-five (25) days prior to the closing date of such underwritten
offering and ending ninety (90) days after such closing date (or such longer
period as may be reasonably requested by the managing underwriter or
underwriters).
(b) Material Development Condition. With respect to any
Registration Statement filed or to be filed pursuant to Section 3, if the
Company determines that, in its good faith judgment, (i) it would (because of
the existence of, or in reasonable anticipation of, any acquisition or
corporate reorganization or other transaction, financing activity, stock
repurchase or other development involving the Company or any subsidiary, or the
unavailability for reasons substantially beyond the Company's control of any
required financial statements, or any other event or condition of similar
significance to the Company or any subsidiary for purposes of disclosure to the
stockholders or potential investors of the Company) be materially
disadvantageous (a "Material Development Condition") to the Company or any
subsidiary or its stockholders for such a Material Development Condition to be
publicly disclosed, and (ii) the Company reasonably believes it would be
required under the Securities Act to disclose such Material Development
Condition in such Registration Statement, then the Company shall,
notwithstanding any other provisions of this Agreement, be entitled, upon the
giving of a written notice that a Material Development Condition has occurred
(a "Delay Notice") from an officer of
10
the Company to any Holder of Registrable Securities included or to be included
in such Registration Statement, (i) to cause sales of Registrable Securities by
such Holder pursuant to such Registration Statement to cease, (ii) to cause
such Registration Statement to be withdrawn and the effectiveness of such
Registration Statement terminated, or (iii) in the event no such Registration
Statement has yet been filed or declared effective, to delay filing or
effectiveness of any such Registration Statement until, in the good faith
judgment of the Company, such Material Development Condition shall be disclosed
or no longer exists (notice of which the Company shall promptly deliver to any
Holder of Registrable Securities with respect to which any such Registration
Statement has been filed). Notwithstanding the foregoing provisions of this
Section 6(b): (1) in no event may such cessation or delay (i) be, for each
such Registration Statement, for a period of more than ninety (90) consecutive
days from the giving of its Delay Notice to a Holder or Holders with respect to
such Material Development Condition, as above provided, or (ii) for each such
Registration Statement, exceed in the aggregate one hundred twenty (120) days
in any consecutive three hundred sixty-five (365) day period; (2) in the event
a Registration Statement is filed and subsequently withdrawn by reason of any
existing or anticipated Material Development Condition as hereinbefore
provided, the Company shall cause a new Registration Statement covering the
Registrable Securities to be filed with the SEC as soon as practicable after
such Material Development Condition expires or, if sooner, as soon as
practicable after the expiration of the earlier of such ninety (90) day or one
hundred twenty (120) day period, and the Registration Period for such new
Registration Statement shall be the greater of thirty (30) days or the number
of days that remained in such Registration Period with respect to the withdrawn
Registration Statement at the time it was withdrawn; and (3) in the event the
Company elects not to withdraw or terminate the effectiveness of any such
Registration Statement but to cause a Holder or Holders to refrain from selling
Registrable Securities for any period during the Registration Period, the
Registration Period with respect to such Holders shall be extended by the
number of days during the Registration Period that such Holders are required to
refrain from selling Registrable Securities.
(c) Limitation on Demand and Piggyback Registration Rights.
Anything to the contrary contained in this Agreement notwithstanding, when (i)
in the opinion of counsel for the Company (which counsel shall be experienced
in securities law matters), registration of the Registrable Securities is not
required by the Securities Act and other applicable securities laws in
connection with a proposed sale of such Registrable Securities and (ii) the
amount of Registrable Securities held by such Holders does not exceed five
percent of the outstanding shares of Common Stock, on a fully diluted basis,
the Holders shall have no rights pursuant to Sections 3 and 4 hereof to request
a Demand Registration or a piggyback registration in connection with such
proposed sale and the Company shall promptly provide to the transfer agent and
the Holders' broker in connection with any sale transaction an opinion to the
effect set forth above, reasonably sufficient in form and substance to permit
the transfer agent to issue stock certificates for such Registrable Securities
without any legend restricting transfer thereof.
SECTION 7. REGISTRATION EXPENSES.
All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees (including, without limitation, any fees payable to the NASD or
the relevant securities exchange if the Company's shares are listed on such
exchange), fees and expenses of compliance with securities or "blue
11
sky" laws (including reasonable fees and disbursements of counsel in connection
with "blue sky" qualifications or registrations (or the obtaining of exemptions
therefrom) of the Registrable Securities), printing expenses (including
expenses of printing Prospectuses), messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), fees and
disbursements of its counsel and its independent certified public accountants,
securities acts liability insurance (if the Company elects to obtain such
insurance), fees and expenses of any special experts retained by the Company in
connection with any registration hereunder and fees and expenses of other
Persons retained by the Company (all such expenses being referred to as
"Registration Expenses"), shall be borne by the Company; provided, that
Registration Expenses shall not include any fees and expenses of counsel for
the Holders, out-of-pocket expenses incurred by the Holders and underwriting
discounts, commissions or fees attributable to the sale of the Registrable
Securities.
SECTION 8. INDEMNIFICATION.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, but without
duplication, each Holder of Registrable Securities, and each Person who
controls such Holder (within the meaning of the Securities Act), against all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation and reasonable legal fees and expenses) resulting from any
untrue statement of a material fact in, or any omission of a material fact
required to be stated in, any Registration Statement or Prospectus or necessary
to make the statements therein (in the case of a Prospectus in light of the
circumstances under which they were made) not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by any Holder or any underwriters expressly for use therein. The
Company will also indemnify underwriters participating in the distribution,
their officers, directors, employees, partners and agents, and each Person who
controls such underwriters (within the meaning of the Securities Act), to the
same extent as provided above with respect to the indemnification of the
Holders of Registrable Securities, if so requested.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a Holder of Registrable
Securities is participating, each such Holder will furnish to the Company in
writing such information and affidavits relating to such Holder as the Company
reasonably requests for use in connection with any such Registration Statement
or Prospectus and agrees to indemnify and hold harmless, to the full extent
permitted by law, but without duplication, the Company, its officers,
directors, stockholders, employees, advisors and agents, and each Person who
controls the Company (within the meaning of the Securities Act), against all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation and reasonable legal fees and expenses) resulting from any
untrue statement of material fact in, or any omission of a material fact
required to be stated in, the Registration Statement or Prospectus or necessary
to make the statements therein (in the case of a Prospectus in light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information or affidavit relating to such Holder so furnished in writing by
such Holder to the Company specifically for inclusion therein. The Company and
the other Persons described above shall be entitled to receive indemnities from
underwriters participating in the distribution,
12
to the same extent as provided above with respect to information so furnished
in writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. In no event shall any participating Holder have an
obligation to indemnify any Person pursuant to this Section 8(b) for any amount
in excess of the net proceeds received by such Holder from the Registrable
Securities offered and sold by such Holder pursuant to such Registration
Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with counsel of such indemnifying party's choice and reasonably satisfactory to
the indemnified party; provided, however, that the failure to notify the
indemnifying party shall not relieve the indemnifying party of any liability
that it may have to the indemnified party hereunder, except to the extent that
the indemnifying party forfeits substantive rights or defenses by reason of
such failure; provided, further, that any Person entitled to indemnification
hereunder shall have the right to employ separate counsel and to participate in
(but not control) the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such indemnified Person unless (A) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to the indemnified party in a timely
manner or (B) in the reasonable judgment of any such Person, based upon a
written opinion of its counsel, a conflict of interest may exist between such
Person and the indemnifying party with respect to such claims (in either of
which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such Person). The indemnifying party will not be
subject to any liability for any settlement made without its consent. No
indemnified party will be required to consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of the claim will
not be obligated to pay the fees and expenses of more than one counsel (except
one (1) local counsel if required in a specific instance) for all parties
indemnified by such indemnifying party with respect to such claim.
(d) Contribution. If for any reason the indemnification
provided for in Section 8(a) or Section 8(b) is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by Section 8(a) and
Section 8(b), then the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party and the indemnified party, but also
the relative fault of the indemnifying party and the indemnified party, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement or the omission or alleged omission relates to information
supplied by the indemnifying party or parties on the one hand, or the
indemnified party or parties on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentations. In no event shall any
13
participating Holder be required to contribute any amount in excess of the net
proceeds received by such Holder from the Registrable Securities offered and
sold by such Holder pursuant to such Registration Statement.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any Underwritten Offering
hereunder unless such Person (i) agrees to sell such Person's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements. Nothing in this Section 9 shall be construed to create any
additional rights regarding the registration of Registrable Securities in any
Person otherwise than as set forth herein.
SECTION 10. AMENDMENTS AND WAIVERS.
The provisions of this Agreement, including the provisions of
this Section 10, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of a majority of the
Registrable Securities then outstanding. Whenever the consent or approval of
Holders of a specified number of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its controlled affiliates
(other than Holders of Registrable Securities if such Holders are deemed to be
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required number.
SECTION 11. TERM OF AGREEMENT.
This Agreement may be terminated at any time by a written
instrument signed by Holders of all of the Registrable Securities then
outstanding. Unless sooner terminated in accordance with the preceding
sentence, this Agreement shall terminate in its entirety on such date as there
shall be no Registrable Securities outstanding; provided that any shares of
Common Stock previously subject to this Agreement shall not be Registrable
Securities following the sale of such shares in an offering registered pursuant
to this Agreement.
14
SECTION 12. NOTICES.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or air-courier guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company, in accordance
with the provisions of this Section 12, which address initially is,
with respect to each Holder, listed on Schedule 1 attached hereto.
(b) If to the Company, initially at
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of Legal Services
Telecopier no. (000) 000-0000
Confirm no. (000) 000-0000
with a copy to
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopier no. (000) 000-0000
Confirm no. (000) 000-0000
and thereafter at such other address as may be designated from time to
time by notice given in accordance with the provisions of this Section
12.
(c) All such notices and other communications shall be deemed
to have been delivered and received (i) in the case of personal
delivery, telecopier or telegram, on the date of such delivery, (ii)
in the case of air courier, on the Business Day after the date when
sent and (iii) in the case of mailing, on the third Business Day
following such mailing.
SECTION 13. COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
SECTION 14. HEADINGS.
The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
15
SECTION 15. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF.
SECTION 16. JURISDICTION; FORUM; SERVICE OF PROCESS.
Any action or proceeding arising under or relating to this
letter or any of the transactions contemplated hereby may only be brought in
the United States District Court for the Southern District of New York or the
courts of the State of New York located in the County of New York. Each party
hereto submits to personal jurisdiction of each such court with respect to any
action or proceeding arising under or relating to this Agreement or any of the
transactions contemplated hereby and waives any objection to the laying of
venue in such courts and any claim that any such action or proceeding has been
brought in an inconvenient forum. To the extent permitted by law, any judgment
in respect of a dispute arising under or relating to this Agreement may be
enforced in any other jurisdiction within or outside the United States by suit
on the judgment, a certified copy of such judgment being conclusive evidence of
the fact and amount of such judgment. The Securityholder hereby irrevocably
appoints the person listed on the signature page hereof as its agent for
service of process in connection with any action or proceeding arising under or
relating to this Agreement and any of the transactions contemplated hereby.
Each party hereto agrees that personal service of process may be effected by
any of the means specified in Section 12 hereof, addressed to such party. The
foregoing shall not limit the rights of any party to serve process in any other
manner permitted by law.
SECTION 17. SEVERABILITY.
In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
SECTION 18. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto, including
without limitation and without the need for an express assignment to, any
subsequent Holder of the Registrable Securities.
SECTION 19. ENTIRE AGREEMENT.
This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
16
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Registration Rights Agreement as of the date first written
above.
INFOGRAMES, INC.
By:
---------------------------------
Name:
Title:
CALIFORNIA U.S. HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
17
SCHEDULE 1
California U.S. Holdings, Inc.
c/o Infogrames Entertainment S.A.
00, xxx xx 0xx Xxxx 0000
Xxxxxxxxxxxx, 00000
Xxxxxx
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000 00) 000 000000
Confirm: (000 00) 000 000000
and
Attention: Xxxxxxxx Xxxxxxxxx
Telecopy: (000 00) 000 000000
Confirm: (000 00) 000 000000
